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Case: 15-10007

Date Filed: 04/27/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10007
Non-Argument Calendar
________________________
Agency No. A206-799-106

JIE ZHU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 27, 2016)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:

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Jie Zhu is a native and citizen of the Peoples Republic of China (China)
who claims that he will suffer persecution for his Christian faith if he is sent back.
An immigration judge (IJ) ordered Zhus removal to China after finding that he
abandoned his application for asylum by failing to file it on time. The Board of
Immigration Appeals (BIA) affirmed the IJs finding of abandonment and denied
Zhus motion to remand the case for consideration of his then-completed asylum
application. Zhu petitions this Court for review, arguing that he was denied a full
and fair opportunity to present his claim for relief from removal and that he did not
willfully abandon his asylum application. He contends that he should have been
given more time to present his case because he was uninformed, did not understand
that he had to submit an application, could not find anyone to assist him, did not
speak English, and was not given a realistic opportunity to have an attorney
represent him. After careful review, we deny the petition for review.
I.
Zhu entered the United States without authorization on June 8, 2014. One
month later, Zhu was served with a Notice to Appear, charging him as removable
under 8 U.S.C. 1182(a)(7)(A)(i)(I) for being an immigrant who, at the time of
application for admission, was not authorized to enter the United States.
Zhu appeared five times before an IJ in connection with his removal
proceeding. At each hearing, the IJ telephonically obtained a Mandarin interpreter
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for Zhu. At no point did Zhu express that he was unable to understand the
interpreter. At all times, Zhu was detained at a facility in Lumpkin, Georgia.
In total, the IJ continued Zhus case three times to allow him to obtain
representation. Zhu first appeared before an IJ on July 23, 2014, and asked for
time to talk to an attorney. At the second hearing (July 30), Zhu stated he had
obtained an attorney, but the attorney did not make an appearance. At the third
hearing (August 14), Zhu again appeared without an attorney. The IJ warned Zhu
that he would have one last setting for his attorney to appear on Zhus behalf, and
that if his attorney did not do so, the IJ would start working on [Zhus] case.
(Administrative Record (AR) at 111). When no attorney made an appearance at
Zhus fourth hearing (August 20), the IJ proceeded to question Zhu under oath and,
based on his responses, found him removable to China for entering the United
States without authorization.
After finding Zhu removable, the IJ questioned Zhu to determine if he was
eligible for any relief from removal. Zhu responded that he was afraid to return to
China because he had been beaten for practicing Christianity and that was why he
left. The IJ gave Zhu an application for asylum and directed him to go to Catholic
Charity, an organization that, according to the IJ, was in the detention facility
several times a week and could help Zhu to fill out the application. Zhu indicated
that he understood.
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The IJ informed Zhu that he would come back for a hearing on September 3,
and that the Court wants to see if that application has been filled out at that time.
(AR at 120). The IJ further stated that there would be no more delay, and that if
the asylum papers are not filled out we are going to send you back to China.
(AR at 120-21). Zhu, through an interpreter, stated that he understood.
At the fifth and final hearing (September 3), Zhu did not have an attorney
and had not filled out the asylum application. When the IJ told him he was
supposed to file the asylum documents that day, Zhu responded that he did not
know how to write or fill out the application. The IJ summarized the procedural
history of the case, stating that Zhu had been told to take the application to
Catholic Charity, which would find you someone who spoke Mandarin to help
you fill out your form. (AR at 124-25). Further, the IJ stated, The Court also
warned you about not filing your papers today. As you have not filed your
paperwork today, the Court is ordering you to be returned to China. (AR at 125).
Accordingly, the IJ ordered Zhu removed to China.
Following the final hearing on September 3, 2014, Zhu obtained counsel and
appealed the IJs decision to the BIA. The BIA received Zhus appeal package on
September 22, 2014. Zhu submitted a completed asylum application with his
appeal and asked the BIA to remand his case to the IJ for consideration of the
merits of his claims.
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In his brief to the BIA, Zhu argued that the IJ should have given him
additional time to file for relief because he was detained, did not have the benefit
of counsel, did not understand the IJs instructions, and did not intend to abandon
his asylum application. Zhu also contended that the IJ denied him his due-process
right to a full and fair hearing. On the merits of his claims, Zhu argued that he was
likely to succeed if given the opportunity to present his case.
The BIA affirmed the IJs decision, denied Zhus motion for remand, and
dismissed the appeal. The BIA upheld the IJs finding of abandonment as follows:
The regulations provide that the [IJ] may set and extent
time limits for the filing of applications for relief. In this
case, the [IJ] continued the respondents case on four
occasions to allow the respondent to apply for all forms
of relief for which he was eligible. The [IJ] advised the
respondent that she would consider any application for
relief abandoned if not filed within the deadline. At the
fifth and final hearing, the [IJ] ordered the respondent
removed, because he did not submit an application for
relief. According to regulations, if the application is not
filed within the time set by the [IJ], the opportunity to file
the application shall be deemed waived. Hence, we find
no basis to remand this case for consideration of the
respondents asylum claim.
(AR at 7) (citations omitted). The BIA also rejected Zhus argument that his dueprocess rights had been violated, finding that he had been given notice and an
opportunity to obtain counsel for his removal proceeding and to file an asylum
application.
Zhu timely petitioned this Court for review.
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II.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJs decision. See Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA adopted the IJs finding of
abandonment, so we review that decision as well. See id.
We review for an abuse of discretion an IJs decision that an immigration
application was abandoned as untimely under 8 C.F.R. 1003.31(c). See Tang v.
U.S. Atty Gen., 578 F.3d 1270, 1276 (11th Cir. 2009) (We conclude that the IJs
decision to exclude evidence offered for submission after a court-ordered filing
deadline is discretionary.); Kueviakoe v. U.S. Atty Gen., 567 F.3d 1301, 1306 n.3
(11th Cir. 2009) (holding that an IJ did not abuse its discretion in refusing to admit
evidence after a deadline imposed under 8 C.F.R. 1003.31(c)). Accord Taggar v.
Holder, 736 F.3d 886, 889 (9th Cir. 2013); Moreta v. Holder, 723 F.3d 31, 33-34
(1st Cir. 2013). We likewise review the BIAs denial of Zhus motion to remand
for an abuse of discretion. Cf. Chacku v. U.S. Atty Gen., 555 F.3d 1281, 1286
(11th Cir. 2008) (BIAs denial of motions to reconsider, reopen, or remand
generally reviewed for abuse of discretion).
Our review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or

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capricious. Montano Cisneros v. U.S. Atty Gen., 514 F.3d 1224, 1226 (11th Cir.
2008) (quoting Abdi v. U.S. Atty Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)).
We review de novo claims of due-process violations in removal proceedings.
Lapaix v. U.S. Atty Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
III.
Zhu contends that he was denied a realistic opportunity to present his claim
for asylum, asserting that he was uninformed, did not speak English, did not
understand that he had to submit the application, and was not given sufficient time
to obtain representation or apply for relief. He also argues that he was likely to
succeed on the merits of his claims.
The Fifth Amendment entitles petitioners in removal proceedings to due
process of law, which requires that petitioners be given notice and an opportunity
to be heard in their removal proceedings. Lapaix, 605 F.3d at 1143; see Ali v.
Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (due process requires the opportunity
to be heard at a meaningful time and in a meaningful manner) (quotation
omitted). To obtain relief based on a due-process violation, the petitioner must
show both (1) a violation of due process and (2) substantial prejudice. Lapaix, 605
F.3d at 1143. To show substantial prejudice, the petitioner must demonstrate that,
in the absence of the alleged violations, the outcome of the proceeding would have
been different. Id.
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Federal regulations provide an IJ with administrative control over a removal


hearing. Tang, 578 F.3d at 1276 (citing 8 C.F.R. 1003.31(c)); see Moreta, 723
F.3d at 34 (The regulations governing removal proceedings invest IJs with broad
authority to impose deadlines for court filings.

This authority reflects the

governments strong interest in the orderly and expeditious management of


immigration cases.) (internal quotation marks omitted). The regulations state that
[t]he Immigration Judge may set and extend time limits for the filing of
applications and related documents and responses thereto, if any.

8 C.F.R.

1003.31(c).
If an application for relief is not filed by the deadline set by the IJ, that
ground for relief is deemed waived. Makir-Marwil v. U.S. Atty Gen., 681 F.3d
1227, 1235 (11th Cir. 2012); 8 C.F.R. 1003.31(c). The BIA has long held that
applications for relief from removal are properly denied as abandoned when the
alien fails to timely file them. Matter of RR, 20 I. & N. Dec. 547, 549 (BIA
1992). And we have held that an alien does not have a constitutionally protected
liberty interest in the admission of evidence after the court-ordered deadline and
cannot establish a due process violation based on the IJs adverse decision in that
respect. Tang, 578 F.3d at 1276.
Based on the record before us, we cannot conclude that the IJ abused her
considerable discretion in finding that Zhu abandoned his asylum application by
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failing to take any action with respect to it by September 3. See Moreta, 723 F.3d
at 34. Considered as a whole and in context, the IJs statements adequately
informed Zhu that he faced a deadline to file his asylum application by September
3. When the IJ continued the hearing to September 3, she stressed that there would
be no delay (after several previous delays) and that if Zhu did not fill out the
asylum application, he would be sent back to China.

Zhu indicated that he

understood, and he made no attempt to clarify what the IJ meant or to ask for
additional time. Then, when he appeared before the IJ at the September 3 hearing
without having filled out the asylum application, Zhu did not indicate whether he
had attempted to contact Catholic Charity or taken any steps to complete the
asylum application.
Under these circumstances, we are unable to conclude that the IJ abused her
discretion in finding that Zhu abandoned his claims for relief by failing to file his
application within the court-ordered period. See Tang, 578 F.3d at 1276. See, e.g.,
United States v. Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007) (In applying the
abuse of discretion standard, we recognize that a district court has a range of
choice[,] . . . and so long as its decision does not amount to a clear error of
judgment we will not reverse even if we would have gone the other way had the
choice been ours to make.) (internal quotation marks omitted).

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Likewise, the BIA did not abuse its discretion in denying Zhus motion to
remand. We cannot say that the BIAs decision was arbitrary or capricious, see
Montano Cisneros, 514 F.3d at 1226, in light of the IJs discretion to manage
administrative deadlines in the cases before it and to decide, in its discretion, to
deem abandoned an application not filed by a court-ordered deadline. See MakirMarwil, 681 F.3d at 1235; Tang, 578 F.3d at 1276.
For similar reasons, Zhu has not shown that his due-process rights to a full
and fair hearing were violated. Zhu did not have a constitutionally protected
liberty interest in the admission of his application for asylum after the courtordered deadline. See Tang, 578 F.3d at 1276. Furthermore, the IJ continued
Zhus removal hearing several times to give him the opportunity to obtain an
attorney, and although he represented that he had found one, no attorney ever filed
a notice of appearance. In addition, for reasons explained above, Zhu was given
constitutionally adequate notice of his opportunity to file an asylum application
and of his deadline to file. Under the circumstances, we are unable to conclude
that Zhu was deprived of the the opportunity to be heard at a meaningful time and
in a meaningful manner. See Ali, 529 F.3d at 490.
Accordingly, we deny the petition for review.
PETITION DENIED.

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